New York’s Wage Theft Prevention Act (WTPA)
The New York Wage Theft Prevention Act (“WTPA”) took effect on April 9, 2011. The law’s purpose is to bolster New York’s wage payment laws and stop employers in New York from taking advantage of their workers by depriving them of their hard earned pay. The law creates two requirements for employers – giving employees written notice of wage rates as well as pay stubs.
Employers must give a written notice of wages to each new hire and all employees by February 1 of each year. An additional notice must be given whenever an employee’s wage rate is decreased. The notice must be given in both English and the employee’s primary language. It must also designate a regular payday, how the employee is paid (hourly, salary, etc.), the employee’s rate of pay (including overtime rate), and all relevant contact information for the employer. If the employee makes minimum wage, the notice must also state the permissible deductions from the minimum wage taken by the employer (tips, meals, lodging, etc.).
Employers who fail to give written notice of wages may have to pay damages of $50.00 per week per worker. Thus if an employer with 20 employees fails to give a wage notice for an entire year, it would face potential damages of $52,000 (52 weeks x $50 x 20 workers).
Under wage laws, employers must also provide a wage statement – commonly known as a pay stub – to each employee on payday. The pay stub must state all the information included in the written notice plus the pay period, number of hours worked, and calculation for the amount earned.
According to a New York Department of Labor opinion letter, providing electronic pay stubs will comply with the NY wage laws as long as the employer also provides either paper pay stubs or a workplace computer and printer that employees can use to view and print their pay stubs. In addition, the employer must allow employees to view and print their pay stubs without undue delay or effort and while on company time.
Employers who do not provide pay stubs may have to pay damages of $100.00 per week per worker. That means that the same employer paying $52,000 for failing to give written notice of wages would have to pay an additional $104,000 if it failed to provide pay stubs.
An individual employee can a file private lawsuit against an employer who fails to give the requisite written notice or pay stub, although recovery is limited to $2,500 in such cases.
One of the most significant aspects of the WTPA is that it enhances the rules against retaliation by expanding what constitutes retaliation and by allowing greater remedies for employees. Under the WTPA, everyone in the private sector – not just employers – is prohibited from discharging, penalizing, or discriminating against an employee for protected activity. Additionally, threatening to do any of these is illegal. Protected activity includes filing a complaint, testifying in any proceeding, or complaining to the employer, DOL, or Attorney General about a possible violation of the law. As long as the worker has a good faith basis for doing the activity – even if he is wrong in his claims – he is protected from retaliation.
The WTPA imposes significant civil penalties on retaliators at $20,000 per violation. Violators may even face criminal sanctions.
The New York Department of Labor (“DOL”) is responsible for enforcing the WTPA. The NY DOL may require an employer to reinstate a wronged employee’s job. Otherwise, the employee may be required to pay the employee’s lost salary or a lump sum.
An employer who does not pay the wages required by law must pay 100% of all withheld wages plus interest as liquidated damages to the employee. Further, 15% more in damages is added if the employer does not pay within 90 days of a NY DOL Order to Comply. This allows for significant recovery for a wronged employee seeking a remedy.